Vous êtes sur la page 1sur 20

ALTERNATIVE DISPUTE RESOLUTION

(ADR) METHODS
Civil disputes occurs when a persons rights
have been infringed or an individual has
been injured as a result of another persons
action or inaction

ADR involves settling in civil legal dispute by a


method other than a decision before a court.

Is ADR appropriate for Criminal Disputes?


Negotiation involves two parties
discussing and compromising to
obtain an agreed solution

Negotiation is usually carried out


without legal representatives, but
each party can take their own legal
representation to assist.

Negotiation is not binding


Mediation
Mediation involves an impartial third
party who listens and directs
discussion but does not suggest
outcomes.
Mediation is voluntary
All parties have their say
Atmosphere is informal
Mediation is not binding
Disputes unsuitable for
mediation
Circumstances where both parties are not
willing to attend mediation
Disputes where there is no continuing
relationship between the parties
Disputes where there is evidence of a
gross imbalance of power
Where there are overwhelming emotions
involved
Where there is a history of broken promises
Conciliation

Conciliation involves a third part, who


may make suggestions to the parties

The decisions are not binding


Arbitration
Arbitration involves an independent
third party who actually makes
suggestions and actually imposes a
decision on the parties.

Arbitration is binding
Advantages of ADR
Often takes less time than court
Less formal than courts
Confidential, unlike a court, which is
usually open to the public
Held at more suitable venues
Generally cheaper than litigation
Not adversarial and therefore both parties
can come away from the process feeling
as if they have won
Disadvantages of ADR
Not suitable for all disputes
Decisions are not legally binding
(except Arbitration)
Dispute may still end up in Court
Assume that you have been engaged to handle a big
case by a wealthy client. Under your contract, you are
to receive a down payment of P 25,000.00 acceptance
fee, and a per appearance fee of P 5,000.00, aside
from transportation and representation expenses. You
figure that, since this is a big estate proceeding, it will
drag on for about five years, and that you would have
an assured retainer every month since a case is
calendared at least every month. Further, your client
has also intimated that he would like you to be
appointed administrator of the estate if you win the
case.
The complaint is filed and the case is set for pre-trial. As
the case is called for pre-trial, the judge orders the
parties to go to the Philippine Mediation Center for
mediation. In the mediation proceedings, the mediator
has proposed a compromise which will satisfy the
wishes of your client.
Indicators that a judicial decision will
probably be necessary:
Need for administrative declaration
In some situations, society has a interest in a judge or umpire checking on
the propriety of consensual arrangements (i.e. probate of a will)
Cut and dried bulk cases
Thereby court provides a ritualized public occasion to encourage a
degree of honesty and factual clarity by aggrieved claimants before
another persons freedom or property is taken away.
Need to shift responsibility
For some disputants, a settlement requires a compromise or a loss of some
important interest.
Demonstration of Effort- I wont give in without a fight.
I tried hard; I did not give in easily and other
Indeterminate result; uncertain rules
When a judicial or umpiring precedents have not developed around a
particular kind of dispute, then there are no objective criteria to assist
negotiations.
Indicators that a judicial decision will
probably be necessary:
Settlement offers too divergent
A common cultural pattern of negotiation is known as positional
bargaining.
Preservation of a tough commercial reputation
Some commercial organizations want to be known a tough operators in
order to intimidate present and future customers into compliance with
contractual terms.
Need to control precedent and the law
Some large organizations need to control, as far as possible, the outcome
of disputes so that each publicized outcome does not open a floodgate of
claims.
Need to avoid responsibility for difficult ethical or policy decisions.
There are a number of recurrent situations where administrative decision-
makers or politicians do not bear the responsibility and criticism for
certain difficult policy decisions.
Indicators that a judicial decision will
probably be necessary:
Entrenched judicial power over certain social issues
A Court at the top of the judicial hierarchy, has entrenched
constitutional power (or even statutory) to make, revisit
decisions concerning major social values such as race,
education, gender, freedom of speech and association and is
willing and able to hear disputes which establish precedent
on such issue.
False expectations of one or both disputants
It is relatively common for one or both disputants to have
false expectations about the umpiring process, and they
likely or range of possible results.
The tribunal as theater
There are some disputes where on or both disputant (or the
tribes) want to use the court or tribunal process for
publicity and as a form of theater.
Bluffing and playing chicken
Where positional bargaining the dominant style of
Indicators that a judicial decision will
probably be necessary:
Disputes where one or both disputant are not paying for the
process
A tribunal is a consumer item-if it is free, it will tend to be valued
less and used more.
High conflict about low resources.
History of high personal conflict over relatively small resources, then
negotiation and most varieties of mediation will often not be
successful
Adjustive dissonance
Stages of giving through which many people pass after experiencing
a loss.
Negative Intimacy
Clients involved in conflict, is sometimes apparent that the conflict
provides a meaning to life to certain disputants. They are intimate
with the dispute.
Indicators that a judicial decision will
probably be necessary:
Risk preference
Some people, by nature or nurture, a risk averse and will generally
choose a negotiated bird in the hand over a chance of an umpired
two in the bush.
Benefits of delay
In some cases, an umpires decision in consciously preferred as it
provides for one party the longest period of delay has a range of
dramatic benefits.
Expert helpers as exacerbators of disputes
There are a certain number of disputed which are pushed towards
an umpire because of the psychological needs of the experts
called by the disputants to help.
Hanging on to life meaning values
Sometimes to settle, will involve the volitional surrender of a
value which provides a substantial meaning to life for the
disputant and/or his/her community.
Lawless renegade
There is a category of individuals who regards themselves as
Indicators that filing a formal claim
will probably be necessary
An emergency response to self-help
Common during a conflict for one party to engage in a sudden act of
self help which involves a grab of resources or power.
To attempt to restore the status quo of power and resources so that the
aggrieved to not bargaining from a position of weakness;
To introduce the jurisdiction of a court which rarely looks favorably on violent
self help.
To appear self righteous rather than react as a vigilante
To publicize the acts of a bully or self-helper
To get into a queue
There is a marketing irony that long court waiting lists tend to beget
even longer waiting lists.
Sanctioned deadlines for exchange of information
A recurrent impediment to negotiated agreements is factual
uncertainty for one or more disputants.
To gain information from a third party by subpoena.
There are many people apart from the disputants who have access to
key information which will assist each disputant to decide whether to
settle on what terms.
Indicators that filing a formal claim
will probably be necessary
Negotiation are jammed
Reduction of cost of endless negotiations
Exhortations to continue negotiations or mediations come at
the price of professional fees, absence from work, frustration
and suspicion of being manipulated.
To compel face-to-face meetings in corridors of courts at
interlocutory hearing.
Negotiations need a schedule due to procastination
Common for negotiation to reach a stalemate.
An ultimate deadline at the door of the court
Court process ultimately imposes a dramatic deadline to any
procrastination, incompetence, bumbling, wallowing in grief
and disorganization present during negotiation.
Indicators that filing a formal claim
will probably be necessary
To gain clarity on claims, counter-claims and facts.
An attempt to intimidate.
Some disputants, particularly repeat players may still use
filing as an attempt to scare the defendant who is unfamiliar
with the court processes
An imposition of inconvenience, expense and paper
shuffling on a procrastinator.
Inclusion of new outsiders (lawyers) who bring fresh
perspective
Once a conflict continues over a period of time, standard
patterns of psychological and structural change usually occur
which are hurdles to a negotiated settlement.
Provision of time and ritual to allow grieving
Indicators that filing a formal claim
will probably be necessary
Demonstration of seriousness
Some repeat players in the world of conflict have developed a practice of
ignoring customer complaints unless and until they are served with a
court document.
Incorporation of an extensive code of lawyer ethics during a
conflict
Conflicted individuals or tribes may engage in a range of warlike
strategies including violence, blackmail, intimidation, seizure, hiding
documents and assets, lying, stonewalling, setting false trails, and
destroying assets.
Strategic advantage to be the applicant
Work habits of particular lawyers
Just as some businesses have a habit of not negotiating until served with
court process, conversely some plaintiffs lawyers do not bother with the
expense of negotiations until they have filed a claim in court.
Lack of skills to communicate or negotiate.
Indicators that filing a formal claim
will probably be necessary
Access to a court settlement conference or
mandatory mediation or counseling.
Filer wants publicity
Symbolic step for a downtrodden person
There are many individuals or groups of people who
have been treated badly over a long period of time.
To avoid loss of a claim due to limitation period
or death
To obtain benefits of consent orders
Filing an application enables a settlement to be
handed to the court in the form of consent orders.